LAW ENFORCEMENT PRESUMPTIONS IN WORKER'S COMPENSATION

by Jonathan W.A. Liff of Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer

As it has likely become apparent in previous articles, the rights of police officers under California's Worker's Compensation laws are often significantly different than other individuals within the workforce. The most obvious of these are the benefits received during periods of temporary disability, where police officers are entitled to receive their full, untaxed salary for up to one year per injury. This is commonly referred to as "4850 time." Contrast that to the benefits received by non-public safety workers who can only receive two-thirds of their average weekly wages, at a maximum of up to $840.00 per week, and one can easily appreciate the significance of this special provision for law enforcement officers.

But there are other special provisions created by the state legislature to protect and favor police officers in the event of certain types of injuries. These are known as legal presumptions, which act to give additional weight or significance to these specified conditions when brought before a judge at trial. A presumption requires the judge to find in favor of a party even if that party cannot otherwise prove its position. In addition, the presumption shifts the burden of proof on the issue to the opposing party, who then carries the responsibility to prove that the presumed fact is not true in order to overcome the presumption. Below I will briefly discuss several of the significant presumptions that have been created by the legislature in favor of injured officers.

1. Heart Trouble: This is perhaps the most important of all presumptions for police officers. Under this, essentially any form of "heart trouble" is presumed to be industrial (work-related). While the insurance carrier will seek to rebut this presumption by showing that some other non-industrial disease process or event caused the heart attack or condition, this will be difficult to achieve. This is because, even if the department is able to prove that a non-industrial disease process, such as obesity, family history, or diet contributed to the heart condition, this will still fall short unless it can be shown that it was the immediate cause of the injury.

   It should be noted that this presumption does not only apply to actual heart attacks -- heart disease or a stroke can also be presumed industrial. Furthermore, a heart condition that becomes symptomatic even after retirement can be compensable and may be claimed if discovered within a scaled time period. This time period is equal to three months for each year of service with the department, at a maximum of 5 years (60 months).

   One of the most important aspects of the heart presumption, however, is the "anti-attribution" Clause it contains. What this means is that, in addition to the presumption that the heart injury is industrially caused, the permanent disability that results from the injury cannot be apportioned. This is especially important in light of recent laws enacted in Worker's Compensation that now allow insurance carriers to apportion and reduce permanent disability awards based on degenerative changes, prior injuries and other factors to which they could not previously apportion. Employers and insurance carriers have been trying to litigate around the anti-attribution clause, but so far it has been upheld in appellate courts.
2. Cancer: Police officers are often exposed to potentially carcinogenic materials. Not surprisingly, the legislature has acknowledged these exposures by enacting a presumption for police officers who develop cancer. What is required of the officers is that he or she show exposure to a known carcinogen. To support this, it will be helpful if the officer is able to collect and keep a record of each such chemical he or she is exposed to during their employment, including MSDS sheets whenever possible. And as with heart conditions, cancer claims may be brought after retirement within the same time periods. There is no "anti-attribution" clause associated with this presumption.
3. Hepatitis: While this may be an less frequent condition for law enforcement to encounter on an industrial basis, it is indeed presumed work-related. The hepatitis presumption was primarily enacted in consideration of the more frequent exposures by state correctional officers, it does also apply under the same statutory provision to police officers and other selected public safety servants. For rather obvious reasons, absent this presumption, it would be very difficult to prove industrial hepatitis. As such, this can be a very valuable and useful provision, and applies to all three forms of hepatitis.
4. Hernia: This is yet another presumed industrial injury for police officers. As with cancer and heart conditions above, these injuries may be claimed post-retirement, although one would imagine that an officer would notice a hernia before that time. The same time restrictions apply to post-retirement hernia claims as above.
5. Meningitis, Pneumonia & Tuberculosis: These conditions are most commonly contracted on an industrial basis through exposure to members of the public in rescue and first-aid situations. And yes, the same post-retirement rules apply.
6. Low Back: Due to the effect that wearing a standard duty belt has on a police officer's low back, there is a presumption of industrial low back injury that an officer who has been employed for at least five years on a regular full-time basis and develops such injury. This presumption does not include an anti-attribution clause and can be apportioned to other factors. This also can be claimed up to 60 months after the end of employment, based on the number of months served on the force.

While the above presumptions can be very helpful and even essential to getting an injured police officer the benefits and treatment that he or she needs and deserves, it must be understood that a presumption does not guarantee victory at trial. Certainly, they will be helpful and may provide the extra weight that tips the scales of justice in favor of the injured officer. But obviously, if the insurance carrier and/or their attorney is able to show that the injury and disability are due to non-industrial causes, the firefighter may still lose the case. This is yet one more reason why obtaining representation may be a prudent decision in any Worker's Compensation case.